IN THIS ISSUE
Discussion and Analysis
Five federal financial regulatory agencies have released final rules implementing Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. That section created the provision in the Bank Holding Company Act (“BHC Act”) which will prohibit any banking entity from engaging in proprietary trading or from acquiring or retaining an ownership interest in, sponsoring, or having certain relationships with a hedge fund or private equity fund (“covered fund”).
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The BHC Act provision became effective on July 21, 2012, and provided for a two-year conformance period from the effective date. Thus, by July 21, 2014, banking entities would have been required to discontinue prohibited proprietary trading and covered fund activities.
On November 7, 2011, the Board of Governors of the Federal Reserve, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Securities and Exchange Commission published proposed rules implementing the Volcker Rule (the “Proposed Rule”). The Commodity Futures Trading Commission published their version of the Proposed Rule two months later.
The Proposed Rule prompted thousands of comment letters and required lengthy analysis and discussion by the agencies, ultimately resulting in the release of the Final Rule on December 10, 2013. A July 21, 2014 deadline for compliance would have presented a very aggressive and difficult seven-month compliance timetable for banking entities to wind down prohibited proprietary trading and covered fund activities. In recognition of this, the Board of Governors extended the conformance period for an additional year, until July 21, 2015. The extended conformance period, however, does not apply to certain reporting requirements included in the Final Rule.
The Volcker Rule applies to any banking entity, defined broadly to include banks and certain of their affiliated entities.
Consistent with the Dodd-Frank Act, the Final Rule prohibits a banking entity from engaging in proprietary trading, defined as engaging as principal for the trading account of the banking entity in any purchase or sale of one or more financial instruments. Financial instruments include:
• securities, including options on a security
• derivatives, including options on a derivative or
• contracts of sale of a commodity for future delivery, or option on a contract of sale of a commodity for future delivery.
The definition of trading account is broad, and includes a number of different accounts a banking entity could use to take advantage of short-term fluctuations in the price of a financial instrument. A banking entity does not engage in proprietary trading by purchasing or selling one or more financial instruments where it acts solely as agent, broker or custodian.
The Final Rule continues certain carveouts from the definition of proprietary trading contained in the Proposed Rule and adds certain additional exemptions including, most notably, certain narrowly construed risk-mitigating hedging activities.
The Final Rule also makes important revisions from the Proposed Rule for the treatment of trading activities by foreign banking entities. During the comment process, numerous commenters expressed concern that the foreign trading exemption contained in the Proposed Rule was too narrow and would unnecessarily prohibit foreign trading activities. Critics of the Proposed Rule expressed specific concern that the Proposed Rule’s requirements would cause foreign banking entities to avoid transactions with overseas subsidiaries and branches of US banking entities and would harm the competitiveness of US trading platforms. In response, the Final Rule’s requirements are designed to ensure that where foreign banking entities engage in proprietary trading, they do so in a manner that places the risk, financing and execution outside the US.
The Volcker Rule also prohibits certain “covered fund” activities. A banking entity may not, as principal, directly or indirectly acquire or retain any ownership interest in or sponsor a covered fund.
In response to critical public comments which asserted that the Proposed Rule’s covered foreign fund definition was overly broad, exceeded statutory authority, and potentially violated international treaties, the Final Rule makes meaningful changes to the definition. The Proposed Rule defined a covered fund to include:
• an issuer that would be an investment company under the Investment Company Act but for exceptions under Sections 3(c)(1) or 3(c)(7) thereof
• any commodity pool under Section 1a(10) of the Commodity Exchange Act and
• any issuer organized or offered outside the US that would be a covered fund, were it organized or offered under the laws, or offered to one or more residents, of the US or one of its states.
The Final Rule creates certain limitations on the inclusion of commodity pools and significantly revises the definition with respect to foreign funds. In focusing on the risks to US banking entities that the Volcker Rule was meant to address, the Final Rule provides that a foreign fund is only a covered fund where it is sponsored by, or has issued an ownership interest to, a banking entity that is, or is controlled by a banking entity that is, located in or organized under the laws of the US or any state.
The Final Rule retains the Proposed Rule’s permitted activities with respect to covered funds. Subject to certain conditions and limitations, banking entities may invest in or sponsor a covered fund in connection with:
• organizing and offering the covered fund
• certain risk-mitigating hedging activities
• de minimis investments in covered funds and
• certain permitted activities and investments outside of the US.
For the purposes of permitted activities and investments outside of the US, the Final Rule revises the requirements in the same way as the foreign trading exemption under the proprietary trading rules. Among other conditions, the Proposed Rule would only have permitted the activities if:
• the banking entity conducting the activity was not organized under the laws of the US or of one or more states
• no subsidiary, affiliate, or employee of the banking entity was incorporated or physically located in the US and
• no ownership interest in the covered fund was offered for sale or sold to a resident of the US.
In contrast, the Final Rule narrows these restrictions to require that:
• the banking entity engaging as principal in, making the decision to, and providing the financing for, the investment in, or the sponsorship of, the covered fund not be located in or organized under the laws of the US or any state and
• the investment or sponsorship is not accounted for as principal by any branch or affiliate located in the US or organized under the laws of the US or any state.
The Final Rule retains the requirement that no ownership interest be offered for sale to a resident of the US, but potentially softens that requirement by clarifying that it is satisfied where an offering does not “target residents” of the US.
The Proposed Rule required banking entities to develop Volcker Rule compliance programs. Banking entities that exceeded certain asset and volume of activity thresholds were subject to enhanced compliance program standards with more specific and complex requirements. Even banking entities that did not engage in any activities covered by the Volcker Rule were expected to develop policies and procedures and a compliance program to prevent prohibited activities. The Final Rule makes certain significant changes to the compliance program and reporting requirements.
As noted above, statutory requirements of the Dodd-Frank Act required banking entities to terminate all prohibited proprietary trading activities and covered fund investments or relationships by July 21, 2014, but permitted the Board to extend the conformance period by up to three one-year periods. On February 14, 2011, the Board published rules for extending the conformance period, and those rules envisioned banking entities applying individually for one-year extensions by submitting written requests to the Board. In conjunction with the release of the Final Rule, however, the Board also extended the conformance period (exclusive of reporting requirements for banking entities with significant trading activities) for all covered banking entities to July 21, 2015.
Our client alert providing a more detailed summary of the Volcker Rule is available here.
This is our final issue of 2013. We wish all of our clients, friends and readers a wonderful holiday season and a happy, healthy, peaceful and prosperous new year. Watch for the next issue of the DLA Piper Financial Report on January 9, 2014.
News from the Americas
US adopts rules banning proprietary trading by banks. US financial services regulators voted to adopt regulations implementing the Dodd-Frank Act’s “Volcker rule,” which prohibit deposit-taking banks from engaging in proprietary trading. According to Bloomberg, the adopted regulations include a broader exemption for banks’ market making activities while tightening the requirements for the hedging exemption. The rules also include a chief executive certification provision which requires a bank’s CEO to attest to the bank’s compliance with the rules. Firms will be required to comply with the rule by July 21, 2015. (12/10/2013) Summary. The Washington Post republished the full text of the regulation as well as the US agencies’ joint press release which summarizes the adopted regulations’ provisions. (12/10/2013) Republication.
OSC to hold derivatives reporting seminar. The Ontario Securities Commission announced that it will hold a seminar on January 15, 2014, on the reporting requirements under the new Derivatives Trade Repositories and Data Reporting rule. OSC press release.
Canadian regulators propose amendments to registration rules. The Canadian Securities Administrators requested comment on proposed amendments to National Instrument 31-103, Registration Requirements, Exemptions and Ongoing Registrant Obligations, the regulatory framework for firms and individuals who trade in securities, provide investment advice or manage investment funds. The proposals address proficiency requirements for registrants, the exempt market dealer category of registration, the sub-adviser exemption, the review of notices acquisitions of shares or assets of registered firms, and conflicts of interest. Comments should be submitted by March 5, 2014. (12/5/2013) CSA press release.
News from Asia and the Pacific
ASIC issues guidance and consultation on superannuation reforms. The Australian Securities & Investments Commission issued additional guidance to assist the industry with superannuation reforms and published a consultation paper about keeping superannuation websites up to date. The guidance relates to the new product dashboard requirements for MySuper products, and the new fees and costs disclosure requirements for product disclosure statements and periodic statements. Comments on the consultation should be submitted by February 3, 2014. (12/6/2013) ASIC press release.
Singapore consults on banks’ related party transactions. The Monetary Authority of Singapore published proposed changes to its requirements on banks’ transactions with related parties. Comments should be submitted by January 15, 2014. (12/5/2013)
ASIC reports on structured products industry. The Australian Securities & Investments Commission published its report on retail structured products. Its assessment of advice provided by financial services firms to investors about capital protected products found that many advisers did not make adequate enquiries into their clients’ personal circumstances. (12/4/2013) ASIC press release.
ASIC disclosure guidance for shorter product disclosure statements. After full commencement of the shorter Product Disclosure Statement (PDS) regime in June 2012, The Australian Securities & Investments Commission ASIC reviewed a sample of shorter PDSs for superannuation and simple managed investment schemes. It found that issuers have made a good effort to comply with the regime and any non-compliance tended to be technical rather than substantive. ASIC has provided guidance on technical issues related to implementation of the product disclosure regime. (11/27/2013) ASIC press release.
Australia releases revised custody guidance. The Australian Securities & Investments Commission released revised guidance on the custody of assets and standards to be met by asset holders. The revised guidance (Regulatory Guide 133, renamed Managed investments and custodial or depository services: Holding assets (RG 133)) updates existing measures to apply minimum standards to asset holders for managed investment schemes and holders of financial products, and affects responsible entities, licensed custodians, platform operators and managed discretionary account operators; ensures agreements with asset holders have certain minimum terms. It also requires primary production scheme responsible entities to safeguard the land on which the scheme operates. ASIC also updated Regulatory Guide 166 Licensing: Financial requirements (RG 166) to accommodate industry practice of custody of certain assets like derivatives and certain bank accounts and private equity interests when these are held by a responsible entity of a managed investment scheme where existing financial resource requirements would not otherwise allow this. (11/21/2013) ASIC press release.
News from Europe
European Commission executive testifies before UK Parliament. Patrick Pearson, head of Financial Markets Infrastructure in the European Commission’s Internal Market Directorate General, testified before the UK parliament about anticipated EC rulemakings. According to Reuters, Pearson said the EC will cautiously consider potential curbs to shadow banking and, in so doing, seek to avoid any unintended consequences. It is unlikely that the Commission will require banks to divest themselves of their proprietary trading activities. (12/10/2013) Testimony.
UK watchdog reports on annuities industry. The Telegraph summarized a report issued by the UK’s Financial Services Consumer Panel on insurance industry annuities. The report found that some firms are exacting excessive fees and charges from customers. (12/9/2013) Report.
EBA report on bank transparency. The European Banking Authority published a follow-up review which assesses the disclosures made by 19 European institutions in response to the Basel Pillar 3 requirements, as set out in the EU Capital Requirements Directive. Despite improvements in some specific areas, credit institutions’ compliance with disclosure requirements remains unchanged compared to last year’s assessment where no bank had fully met all the requirements. The report also highlighted that comparability and consistency of disclosures between the different institutions could be improved. (12/9/2013) EBA press release.
UK FCA quarterly consultation paper. The UK Financial Conduct Authority published its quarterly minor amendment proposals. These proposals relate to the transfer of consumer credit regulation from the Office of Fair Trading to the FCA, introduce an administrative charge to recover costs of dealing with late publication by listed issuers of periodic financial reports under the disclosure and transparency rules, extend the ability of authorized fund managers and others to communicate electronically with unitholders (including through website-based communications), and amend the procedure for processing a waiver application. Comments should be submitted by February 6, 2014. (12/6/2013) FCA press release.
EBA final draft standards for exposure determinations. The European Banking Authority published its final draft Regulatory Technical Standards (RTS) which define the conditions and methodologies used to determine the overall exposure to a client or group of connected clients resulting from an exposure to a transaction with underlying assets and the risks inherent in the structure of the transaction itself. The draft RTS set out the methodology for the calculation of the value of exposures to transactions with underlying assets, the procedure used to determine the contribution of underlying exposures to overall exposures to clients and groups of connected clients and the conditions under which the structure of the transaction does not constitute an additional exposure. (12/5/2013) EBA press release.
EBA final standards for assessing materiality of model extensions. The European Banking Authority published final regulatory technical standards (RTS) specifying the conditions for assessing the materiality of extensions and changes of internal approaches for credit and operational risk. Under the Capital Requirements Regulation, all institutions must apply for permission whenever they intend to implement any material extension and change to their internal approaches for credit and operational risk. The proposed RTS aim at harmonizing the assessment of the materiality of extensions, and changes to internal approaches, as well as at ensuring that approved internal approaches comply with the regulatory requirements. (12/5/2013) EBA press release.
EBA publishes XBRL taxonomy. The European Banking Authority published its XBRL taxonomy to be used for remittance of data under the Implementing Technical Standards (ITS) on supervisory reporting. The taxonomy defines a representation for data collection under the reporting requirements related to own funds, financial information, losses stemming from lending collateralized by immovable property, large exposures, leverage ratio and liquidity ratios. It presents the data items, business concepts, relations, visualizations and validation rules described by the EBA Data Point Model contained in the ITS. (12/2/2013) EBA press release.
ESMA report on credit rating agencies. The European Securities and Markets Authority published a report identifying a number of deficiencies in the processes for producing and issuing sovereign ratings at the three largest credit rating agencies: Fitch Ratings, Moody’s Investors Service and Standard & Poor’s. (12/2/2013) ESMA notice.
UK PRA capital standards. The UK Prudential Regulation Authority announced key decisions on capital standards ahead of the introduction of a new European capital regime next year. Specifically, the PRA has confirmed the minimum Pillar 1 capital requirements for firms and the dates from which they apply. The PRA will require firms to meet a 4 percent Pillar 1 CET1 requirement in 2014, rising to 4.5 percent from January 1, 2015. Similarly, during the same period the required Pillar 1 Tier 1 capital ratio will be 5.5 percent, rising to 6 percent from January 1, 2015, onwards. PRA will introduce the final definition of CET1 as quickly as possible. Firms will accordingly be required to make all necessary deductions to bring CET1 in line with the end-point definition from January 1, 2014. The PRA has further decided that firms should meet all Pillar 2A risks, including pension risk, with at least 56 percent CET1 capital from January 1, 2015, onwards. This matches the proportion of CET1 capital required for Pillar 1. (11/29/2013) PRA press release.
Adjustments to PRA’s capital regime for UK banks and building societies. The UK Prudential Regulation Authority announced that it will extend the capital offset for corporate lending which accompanies the Funding for Lending scheme but will not extend the capital offset for household lending, which will end on 31 December 2013. PRA press release. (11/28/2013)
Regulators publish principles for financial product oversight. The Joint Committee of the three European Supervisory Authorities published eight principles applicable to the oversight and governance processes of financial products. These principles cover the responsibilities of manufacturers and producers in setting up processes, functions and strategies for designing and marketing financial products. (11/28/2013) EBA press release.
ESMA approves two trade repositories. The European Securities and Markets Authority approved the registrations of two trade repositories under the European Market Infrastructure Regulation. They are ICE Trade Vault Europe Ltd. and CME Trade Repository Ltd. (11/28/2013) ESMA notice.
ESMA publishes updated guidance. The European Securities and Markets Authority published updated guidance concerning the Guidelines on ETFs and other UCITS issues. (11/27/2013) ESMA notice.
EBA consults on own funds. The European Banking Authority opened a consultation on Draft Regulatory Technical Standards (RTS) on own funds (Part IV) aimed at setting harmonized criteria for instruments with multiple distributions that would create a disproportionate drag on capital, as well as clarifying the meaning of preferential distributions. These RTS will be part of the Single Rulebook in banking. Comments should be submitted by January 24, 2014. (11/27/2013) EBA press release.
UK FCA proposes new rules for the use of dealing commissions. The UK Financial Conduct Authority published proposed changes to its rules concerning how investment managers may use dealing commissions - paid from their customers’ funds - to acquire execution-related and research goods and services. Comments should be submitted by February 25, 2014. (11/25/2013) FCA press release.
ESMA technical advice on credit rating agencies. The European Securities and Markets Authority finalized its Technical Advice to the European Commission on the feasibility of a network of small and medium sized credit rating agencies that would increase competition in the market. (11/21/2013) ESMA notice.
ECB consults on mobile banking. The European Central Bank launched a public consultation on the “Recommendations for the security of mobile payments.” Comments on the consultation should be submitted by January 31, 2014. (11/20/2013) ECB press release.
Regulatory harmony. The remarks of David Wright, secretary general of the International Organization of Securities Commissions, were summarized by Reuters. Wright discussed the importance of harmonized derivatives rules in the US and the Europe. (12/9/2013) Wright speech.
IOSCO opens statistical web portal. The Research Department of the International Organization of Securities Commissions launched a statistics web portal that provides the public with a global overview of specific securities markets. The new portal provides a centralized point for monitoring global trends, risks and vulnerabilities; provides a mechanism for comparing how well markets are recovering in light of the financial crisis; and provides the financial community with easy access to key statistics, charts and indicators on a number of securities markets. (11/28/2013) IOSCO press release.
US Securities and Exchange Commission Developments
Selected Enforcement Actions
Oilfield services firm settles FCPA charges. Weatherford International has settled charges that it violated the Foreign Corrupt Practices Act by allegedly paying bribes to and authorizing improper travel and entertainment for foreign officials in the Middle East and Africa, including the payment of kickbacks in Iraq to obtain United Nations Oil-for-Food contracts. The company allegedly gained more than US$59.3 million in profit from business obtained through improper payments, and more than US$30 million in profit from its improper sales to sanctioned countries. Weatherford agreed to pay more than US$250 million to settle the SEC’s charges and parallel actions by the US Department of Justice’s Fraud Section, the US Attorney’s Office for the Southern District of Texas, the US Commerce Department’s Bureau of Industry and Security, and the US Treasury’s Office of Foreign Assets Control. (11/26/2013) SEC v. Weatherford International Ltd., Lit.Rel.No. 22880.
Investment advisers charged with fraud. The SEC instituted contested administrative proceedings against two investment advisers for failing to inform clients about compensation received from offshore funds they were recommending as safe investments despite substantial risks and red flags. The advisers also are charged with contributing to violations of the “custody rule” that requires investment advisory firms to establish specific procedures to safeguard and account for client assets. (11/20/2013) SEC press release.
Private investment adviser fined for compliance failures. The SEC instituted settled administrative proceedings against Agamas Capital Management, LP for willful violations of the Investment Advisers Act. Without admitting or denying the allegations, Agamas consented to the entry of an order finding that it failed to adopt and implement written compliance policies and procedures reasonably designed to prevent violations of the Advisers Act concerning three areas of private fund management: (i) valuation of fund assets, (ii) the accuracy of disclosures to fund investors about the valuation practice, and (iii) cross trades between clients. Among other things, the order requires Agamas to pay a civil penalty of US$250,000. (11/19/2013) In the Matter of Agamas Capital Management, LP, SEC Release No. IA-3719.
Staff announcements. The SEC announced the appointment of Julie K. Lutz as director of the Denver Regional Office, where she will oversee enforcement and examinations in a seven-state region. (11/20/2013) The agency also announced that it has named Sebastian Gomez Abero as chief of the Office of Small Business Policy. (12/9/2013)
SEC Commissioner seeks market structure review. According to the Financial Times, SEC Commissioner Michael Piwowar has joined Commissioners Daniel Gallagher and Luis Aguilar in calling for a review of US financial market structure. (12/9/2013) Summary. See also Piwowar speech.
Division of Corporation Finance guidance. The SEC’s Division of Corporation Finance added new Compliance and Disclosure Interpretations regarding Securities Act Rule 506, the regulations governing who may participate in certain securities offerings. The new material can be found at Questions 260.14 through Question 260.27. (12/4/2013) Compliance and Disclosure Interpretations.
Credit rating agency conflicts of interest. The SEC published a report on the independence of credit rating agencies and their management of conflicts of interests. (11/21/2013) Report.
FCPA enforcement developments. The SEC’s Co-Director of the Division of Enforcement, Andrew Ceresney, summarized the latest developments in the SEC’s enforcement of the Foreign Corrupt Practices Act. During the last year, the agency recovered over US$240 million in disgorgement and penalties from FCPA cases. Ceresney also emphasized his Division’s intention to bring FCPA cases against individuals. (11/19/2013) Ceresney speech.
US Commodity Futures Trading Commission Developments
Requests for Comment
Available-to-trade determinations. The CFTC requested comment on a certification from Bloomberg SEF LLC to implement available-to-trade determinations for certain interest rate and credit default swap contracts. Comments should be submitted by January 8, 2014. (12/9/2013) CFTC press release.
No-Action relief for certain non-US swap dealers. The CFTC’s Division of Swap Dealer and Intermediary Oversight, Division of Clearing and Risk, and the Division of Market Oversight provided time limited relief to swap dealers registered with the CFTC that are established under the laws of jurisdictions other than the United States from certain transaction-level requirements under the Commodity Exchange Act when entering into swaps with a certain category of non-US counterparties. (11/26/2013) CFTC Letter No. 13-71.
Weekly swaps reports. The CFTC has begun publication of a weekly swaps report that will provide a detailed view of the swaps marketplace. The first report covers the interest rate and credit asset classes and provides three views of the swaps market: the gross notional outstanding value, the weekly transactions measured by dollar volume, and the weekly transactions measured by ticket volume. For each asset class, the report provides detailed breakdowns of the swaps market by product type, currency (six major currencies), tenor, participant type, and whether swaps are cleared or uncleared. (11/20/2013) CFTC press release.
US Banking Agency Developments
Quantitative liquidity requirements proposed. The US federal banking agencies published a proposed rule that would implement a quantitative liquidity requirement consistent with the liquidity coverage ratio established by the Basel Committee on Banking Supervision. The proposal would apply to internationally active banking organizations -- generally bank holding companies, certain savings and loan holding companies, and depository institutions with more than US$250 billion in total assets or more than US$10 billion in on-balance sheet foreign exposure -- and to their consolidated subsidiaries that are depository institutions with US$10 billion or more in total consolidated assets. The proposed rule would also apply to companies designated for supervision by the Board by the Financial Stability Oversight Council that do not have significant insurance operations and to their consolidated subsidiaries that are depository institutions with US$10 billion or more in total consolidated assets. The Federal Reserve Board is also proposing a modified liquidity coverage ratio standard that is based on a 21-calendar day stress scenario rather than a 30 calendar-day stress scenario for bank holding companies and savings and loan holding companies without significant insurance or commercial operations that, in each case, have US$50 billion or more in total consolidated assets. Comments should be submitted by January 31, 2014. (11/29/2013).
US Judicial Developments
Tax shelter penalties upheld. The US Supreme Court unanimously upheld an IRS penalty imposed on two investment company partners who participated in a tax shelter by purchasing both long option and short option currency spreads and, when the partnership assets were subsequently disposed of, claimed huge losses by considering only the long option spreads and ignoring the short option spreads in their final accounting. (12/3/2013) US v. Woods.
Failure to supervise penalty affirmed. The US Court of Appeals for the District of Columbia affirmed an SEC order imposing a fine on a broker-dealer for failing to supervise a subordinate who sold variable annuities to elderly clients. The Court found that the US$310,000 fine was neither arbitrary nor capricious. The fine took into account many factors, including the broker’s “egregious” violations, his “blatant failure to deal fairly with elderly, unsophisticated customers,” and the fact that the broker falsified documents. (11/26/2013) Collins v. SEC.
US Exchanges and Self-Regulatory Organizations
NFA guidance on annual affirmation requirement. The National Futures Association published guidance on the annual affirmation requirement for those entities that are currently operating under an exemption or exclusion from CPO or CTA registration. The CFTC requires any person that claims an exemption or exclusion from CPO or CTA registration under CFTC rules to annually affirm the applicable notice of exemption or exclusion within 60 days of the calendar year end, which is March 3, 2014, for this affirmation cycle. Failure to affirm the exemptions or exclusions by March 3, 2014, will be deemed as a request to withdraw the exemption or exclusion and therefore, result in the automatic withdrawal of the exemption or exclusion on March 3, 2014. (12/5/2013) NFA Notice I-13-38.